Can the federal government require a private employer to provide a service or product to employees that violates the private owner’s freedom of conscience? This is the subject that is up for debate in an upcoming US Supreme Court case pitting Hobby Lobby and Conestoga Wood Specialties against the Health and Human Services contraception mandate that is part of the Patient Protection and Affordable Care Act. Prof. Matthew Franck, director of the William E. and Carld G. Simon Center on Religion and the Constitution at the Witherspoon Institute, provides us with the background to this case, the historical precedents that may influence how it is decided, and his review of what each side will be arguing in late March.

We begin with a review of how this court case percolated up to the Supreme Court, as well as a brief discussion who the primary plaintiffs — Hobby Lobby and Conestoga Wood Specialties — are and what issues are at stake. This discussion covers a bit of the history of the Patient Protection and Affordable Care Act and the HHS mandate that came out in the fall of 2011. The primary issue being contested concerns whether or not a business owner can be required to provide certain types of contraception, most notably abortifascients, that those owners consider to be in direct violation of their religious conscience. Tony asks a variety of questions regarding the nature of the litigants including why they were chosen amongst a number of other potential companies that were also suing, and whether or not the fact that both of these companies are privately held has any impact on their legal standing. Matt fills in all the details and notes how the case might have been different had this been the CEO of a publicly-held and traded corporation bringing suit. He also points out that under consideration is whether or not a corporation — in this case one that is privately held — can have the same rights of conscience that an individual possesses under the US Constitution’s First Amendment.

We next consider the historical case law that may (or may not) inform the thinking of the Supreme Court justices. We take a quick tour of religious liberty cases over the past half century beginning with Sherbert v Verner and ending, most recently, with Hossana-Tabor, a case that Matt has discussed in greater detail on this show before (see link below). It is during this discussion that Prof. Franck brings up a judicial concept that Tony was unaware of — exemption-based jurisprudence. This style of jurisprudence allows for laws to be made and then exemptions appealed for based upon some special characteristic of an individual or group. Matt feels that this is not the best legal structure for a country to have, something that he has written about and will be available in a few weeks (see link below).

Following our historical discussion, Matt then lays out what he believes will be the arguments made on both sides of this case. A coin flip determined that he would start with the plaintiff’s side of things and he then brings up the defendant’s rebuttal to each of those points. Many of these arguments were hinted at throughout our earlier discussion, but the last 15 minutes of the interview provide a nice summary of what will probably be heard in oral arguments in late March of 2014 (assuming the snow in DC will melt by then). At the end of the conversation, Prof. Franck lays out what he thinks will be the implications for religious liberty should the government win the case and should Hobby Lobby and Conestoga win. Recorded: February 14, 2014.

Thank you for the excellent and extremely informative podcast. If the SC rules against Hobby Lobby, then millions of religious Americans cannot do business in the US without violating our consciences. The tyrannical administration is the greatest threat to our Constitution that I can see, including foreign threats.

My first comment: Corporation or Individual, we are Americans and should be guaranteed the rights or freedoms in our constitution. The founders didn’t write the amendments in such a way as to extend these freedoms to be enjoyed only in our homes or meeting houses but in our offices we no longer have the right to live according to the dictates of our own conscience.

I so very much enjoy these podcasts, they encourage me to be much more understanding of others, yet to be clear in my stand on our God given freedoms.

Prof. Gill – I discovered your podcast after listening to your recent interview with Russ Roberts on Econtalk. This talk was really interesting. I have 2 questions, probably more for Prof. Franck: First, I wondered about the argument that the owners of Hobby Lobby impart their “personhood” (and by extension their beliefs and values) to the corporation simply by being the principal forces behind it. Isn’t it true that corporations are formed in part to separate the owners of the business from the corporation as an entity for liability purposes? If the Greens and the Corporation are basically the same then wouldn’t that mean that the Greens are then personally liable for Corporate debts, lawsuits, etc.? If this is true, why bother being a corporation? Why don’t they just operate as sole proprietorship? And if they were a sole proprietorship would the application of the law be any different? My second question relates to the Religious Freedom Restoration Act that allowed the two Indian religion practitioners to retain their jobs even though they utilized peyote (illegal under their state’s law). I wonder how this would apply to individuals who engage in violence against, for example, abortion providers because the practice violates their religious beliefs. Clearly these individuals believe that they are following their religious beliefs by performing these acts. What makes those cases different? I’m not a lawyer or even a law student (although I find the law fascinating) so I may be overlooking something here, but the questions occurred to me when I was listening to the podcast. I really enjoyed the podcast and will now go through the archives and download some more! Thanks for this service. It is of great value.

You can’t have it both ways, incorporate to shield yourself from personal liability for business liabilities, and then turn around and claim you personal religious beliefs are the businesses religious beliefs.

If this is true then women will not be able to fill up at Muslim owned gas stations, unless they are accompanied by a close male family member.

Your point of view is narrowly focused on, “I’m a Christian and I don’t want to do it, and my CHRISTIAN beliefs should flow to my business.” You are not considering the fact that there are a lot of other religions out there and when we say that a *business* has a religion and dammit they should not be forced to follow the law and do XYZ, you are opening up the box to religious strife and mayhem. You don’t think so because you are the dominate religion so you think by virtue of the majority being Christians you’ll not be impacted. You will. Trust me you will. And it is not going to be pretty.

When we say a business doesn’t have to do this because of *the religion of the business*, you have opened up Pandora’s box. Members of the Church of KKK will be free to turn away black people, Jews will turn away Muslims, Muslims will turn away anyone not properly attired and accompanied. They would have the right to do so because it is *the religious beliefs of the business* and Religion is 1st Amendment Protected. Is this what you want? You are looking at this to narrow.

Likewise I have no sympathy for Little Sisters of the Poor. They are fully entitled to a Religious Exemption from the Law, the reason they are in Court is because they do NOT want to fill out the Request for Exemption Form.